Recent reforms of sexual criminal law in Spain and Switzerland represent an important development towards stronger protection of sexual autonomy. They progressively shift the focus of criminal-law analysis away from the coercion exercised against the victim and towards whether the sexual act was consensual.
These reforms respond in particular to the requirements of the Council of Europe Convention on preventing and combating violence against women and domestic violence, concluded in Istanbul in 2011. The Convention requires States Parties to criminalise sexual acts performed without the freely given consent of the person concerned. It nevertheless took almost a decade for these requirements to be fully incorporated into Spanish and Swiss law. This lengthy process was not without consequences for victims of sexual violence, who had to wait several years for a legal framework more firmly centred on the protection of their sexual freedom and autonomy.
Spain and Switzerland have adopted different approaches, although both are compatible with the requirements of international law. These legislative choices resulted from intense debates within society and political institutions concerning the most appropriate way to define and punish sexual violence.
Part 1 — Comparative Analysis of the Spanish and Swiss Reforms
The first part examines the origins, content and effects of the reforms of sexual criminal law adopted in Spain in 2022 and 2023 and in Switzerland in 2024.
In Spain, the reform process was significantly accelerated by the case known as La Manada. The case concerned sexual acts committed in 2016 by five men against a young woman during the San Fermín festival in Pamplona. The initial judicial decisions classified the acts as sexual abuse rather than sexual assault, on the ground that sufficient violence or intimidation had not been established.
This legal classification prompted widespread social and political mobilisation. It highlighted the shortcomings of a system that distinguished sexual abuse from sexual assault according to the means used by the perpetrator rather than according to the presence or absence of the victim’s consent.
Spanish Organic Law 10/2022, commonly referred to as the “only yes means yes” law, abolished this distinction and placed consent at the centre of the definition of sexual offences. It provides that consent exists only where it has been freely expressed through acts which, assessed in light of the circumstances, clearly demonstrate the person’s will. The aim was to eliminate ambiguities associated with consent that is merely presumed or implied.
The 2022 reform nevertheless created difficulties regarding the coordination of the different sentencing ranges provided for in the Criminal Code. Under the principle of retroactive application of the more lenient criminal law, certain convictions imposed under the previous legislation were reviewed and, in several cases, reduced. The Spanish legislature therefore intervened again in 2023 to readjust the sentencing framework, particularly where the acts were committed through violence or intimidation or where the victim’s will had been overridden. This amendment maintained consent at the heart of the offence while reintroducing a clearer differentiation between penalties according to the manner in which the acts were committed.
In Switzerland, the reform of sexual criminal law entered into force on 1 July 2024. It seeks to strengthen the protection of sexual autonomy by introducing a model based on the principle that “no means no”.
Under the previous law, the mere absence of consent was not always sufficient to constitute a sexual offence. For conduct to be classified as rape or sexual coercion, it was generally necessary to establish that the perpetrator had used threats, violence or psychological pressure, or had rendered the victim incapable of resistance. Although the law did not formally require physical resistance, the legal framework remained centred on proof of coercive means. As a result, clearly unwanted sexual acts could fall outside the principal criminal offences where such coercion could not be established.
The new legislation abandons this restrictive approach. A sexual act may now be punishable where it is performed against the expressed will of the person concerned, whether that refusal is communicated verbally or through conduct. The reform also recognises the state of freezing, in which a person is unable to express opposition. Coercion is therefore no longer a necessary condition for establishing the offence, although it may constitute an aggravating circumstance.
The comparison examines the respective advantages and limitations of the Spanish model, based on an affirmative conception of consent, and the Swiss model, centred on the expression of refusal. It addresses, in particular, the definition of consent, evidentiary requirements, the conditions of criminal liability, and the ability of each system to protect sexual autonomy effectively.
Part 2 — Consent in Swiss Sexual Criminal Law
The second part of the project is devoted to the Swiss reform and to the role of consent under the new sexual criminal law.
It examines two possible interpretations of the principle that “no means no”.
Under the first, relatively restrictive interpretation, non-consent may be recognised only where the person has expressed refusal sufficiently clearly, verbally or through conduct, or where the person is visibly in a state of freezing. This interpretation closely reflects the refusal-based model expressly adopted by the Swiss legislature.
Under the second interpretation, which affords greater protection to sexual autonomy, the absence of consent should be recognised whenever the requirements of free and valid consent are not satisfied, including where the person has not openly expressed opposition. This approach brings Swiss law closer to an affirmative model of consent. It nevertheless raises significant difficulties regarding its compatibility with the statutory wording, the foreseeability of criminal-law provisions and the proof of the elements of the offence.
The project also examines orders and judgments issued by Swiss criminal authorities in situations where the circumstances support a finding that a sexual act occurred without valid consent, but where it is not possible to prove beyond reasonable doubt that the accused was aware of the absence of consent or accepted the risk that the other person did not consent.
In particular, the study seeks to highlight a tendency among the authorities not to recognise the objective existence of a situation of sexual assault where the intentional element cannot be established. A failure to prove criminal intent may therefore lead to the conclusion that no sexual violation occurred, even though it should, where appropriate, lead only to the exclusion of the accused person’s criminal liability.
The inability to prove that the perpetrator was aware of the absence of consent does not necessarily mean that the act was consensual. It should therefore not prevent the authorities from finding that, from an objective perspective, the sexual act occurred against the will of the person concerned.
In this regard, the project proposes a two-stage method of analysis.
- First, the authorities should determine whether the sexual act objectively occurred without valid consent and therefore against the will of the person concerned. This assessment concerns the situation experienced by that person and the objective circumstances surrounding the act.
- Second, the authorities should determine whether the subjective requirements of criminal liability are satisfied. This involves establishing whether the accused was aware of the absence of consent or at least accepted the risk that the other person did not consent.
This distinction would make it possible to recognise the non-consensual nature of the act in law even where a criminal conviction cannot be imposed because the required intent has not been proved to the necessary standard. It would thus provide a more accurate legal account of the experience of the person concerned while fully preserving the presumption of innocence and the evidentiary requirements applicable in criminal proceedings.
More broadly, the project examines how decisions not to initiate proceedings, discontinue proceedings or acquit recognise—or instead obscure—the absence of consent. Judicial practice that fails to distinguish clearly between the objective existence of a non-consensual sexual act and the criminal culpability of its perpetrator risks reinforcing victims’ perception that their experience is not recognised by the law.
This issue is particularly important because sexual violence remains widely underreported. Many victims refrain from contacting the authorities because they fear that they will not be believed or consider that legal proceedings would be futile. The way in which the authorities classify the facts and reason their decisions may therefore affect public confidence in the justice system and the preventive, expressive and protective functions of criminal law.
